Sanctions

The European Court has been willing to scrutinise the effectiveness of sanctions provided by courts in national legal systems to protect EU rights in the area of employment and industrial relations. In the context of an EU Directive on sex discrimination, it stated: (Von Colson and Kamann v. Land Nordrhein-Westfalen, Case 14/83, [1984])

...full implementation of the directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such as to guarantee real and effective judicial protection. Moreover, it must also have a real deterrent effect on the employer. It follows that where a Member State chooses to penalise the breach of the prohibition of discrimination by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained.

As regards specific sanctions, however, the Court was cautious: ‘the directive does not prescribe a specific sanction; it leaves Member States free to choose between the different solutions suitable for achieving its objective’. The equilibrium is illustrated by the Court’s decision regarding UK law remedies for sex discrimination in M.H. Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) (No. 2), Case C-271/91, [1993] : ‘In the event of discriminatory dismissal contrary to Article 5(1) of the directive, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained’.

The adequacy of sanctions provided by national law for the enforcement of collective labour rights has been challenged in cases involving Council Directive 75/129/EEC on Collective Dismissals and Council Directive 77/187/EEC on Acquired Rights. Both Directives require employers to inform and consult employee representatives. The ECJ upheld a complaint that the financial compensation provided for in the United Kingdom regulations implementing the directives was inadequate. This raises a question of principle – specifically, whether financial compensation as a remedy for collective rights of labour is adequate. Particularly in the case of the exercise of collective rights, such as information and consultation, it is arguable that the award of compensation to employees affected by the employers’ failure to inform or consult employee representatives is insufficient to have a real deterrent effect on the employer. ’ (M.H. Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) (No. 2), Case C-271/91, [1993] ECR I-4367, paragraph 24).

See also: complaints to the European Court of Justice; Francovich principle; judicial enforcement of EU law; infringements of EU law; state liability.